Citation: R v CB [2021] NSWDC 800
Court: District Court of New South Wales
Date: 23 November 2021
Judge(s): M L Williams SC DCJ
Background
The offender was convicted by jury of 13 counts of child sex offences following a trial in Newcastle in July and August 2021. The offences involved three siblings who were foster children living in the care of the offender's mother. The offending spanned a decade, from 2004 to 2014, and involved children who were at various times as young as three years old.
The offender was between approximately 11 and 21 years of age across the period of offending. He held a position of authority over the victims, at times being responsible for their supervision in the absence of his mother. He expressed no remorse and maintained his innocence throughout sentencing.
The charges included indecent assault of a child under ten, multiple counts of sexual intercourse with a child under ten, attempted sexual intercourse with a child under ten, sexual intercourse with a child aged between ten and fourteen, and aggravated sexual intercourse with a child aged between ten and fourteen.
Legal Issues
- What aggregate sentence was appropriate given the number, nature, and duration of the offences across three victims?
- How should the court weigh the offender's age at the time of some offences, given that several occurred when he was a juvenile?
- What aggravating factors applied to the offending conduct?
- Whether the standard non-parole period applied, and to which counts?
- Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and total sentence?
- How should the conditions of custody during the COVID-19 pandemic affect the sentence?
Decision
The court convicted the offender on all 13 counts and imposed indicative sentences for each offence before arriving at an aggregate term. The sentencing judge treated the offending as serious across the board, noting that it involved sustained abuse of three young children who were under the offender's de facto supervision, occurred in their home environment, and in several instances involved the use of physical violence or threats to compel compliance.
The court acknowledged that a number of offences were committed while the offender was a juvenile, which moderated the weight given to general deterrence and affected the application of standard non-parole periods. However, the judge found that even at the younger end of the relevant age ranges, the offender had been taught about inappropriate touching and knew his conduct was seriously wrong. The offending persisted and escalated well into his adult years, with some of the most serious conduct occurring after he turned 18.
The court identified several aggravating features: the offences occurred in the victims' home, children were present, and physical violence was used on multiple occasions. The offender's lack of prior convictions was treated as a mitigating factor, though this was substantially counterbalanced by the gravity and repetition of the offending.
On the question of special circumstances, the court accepted that the offender's first experience of custody, his need for ongoing treatment, and the particularly onerous conditions of incarceration during the COVID-19 pandemic collectively justified a finding. This resulted in a non-parole period proportionally shorter than the standard ratio, to allow for a longer period of intensive post-release supervision and to support rehabilitation.
Orders Made
- The offender was convicted of each of the 13 offences.
- Indicative sentences were imposed as follows:
- Count 1: 1 year
- Count 2: 3 years 6 months
- Count 3: 5 years
- Count 4: 2 years 6 months
- Count 5: 3 years
- Counts 6 and 7: 3 years each
- Count 8: 2 years 6 months
- Count 9: 2 years
- Count 10: 2 years 6 months
- Count 11: 3 years 9 months (indicative non-parole period of 2 years)
- Count 12: 5 years (indicative non-parole period of 3 years)
- Count 13: 3 years 6 months
- An aggregate sentence of 10 years imprisonment was imposed, commencing 23 December 2019.
- A non-parole period of 5 years and 6 months was set, expiring 22 June 2025.
- Special circumstances were found.
Key Takeaways
- The District Court applied an aggregate sentencing approach across 13 counts, setting indicative sentences for each offence and arriving at a total term calibrated to reflect the full criminality of the conduct without producing a crushing sentence disproportionate to the offender's circumstances.
- Where some offences were committed during the offender's youth, the court moderated the weight given to general deterrence, consistent with the principle in Bugmy v The Queen (2013) 249 CLR 571 that an offender's age at the time of offending is a relevant consideration in assessing moral culpability.
- Standard non-parole periods applied only to offences committed while the offender was an adult; the court was careful to identify which counts attracted those legislative benchmarks and which did not.
- A finding of special circumstances was available where the offender was a first-time prisoner, had ongoing treatment needs, and faced particularly onerous custody conditions arising from the COVID-19 pandemic, supporting an extended period of post-release supervision on parole.
- Aggravating factors under the Crimes (Sentencing Procedure) Act 1999, including the commission of offences in the victims' home and the use of physical violence, were given significant weight even where the offender was relatively young at the time.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66A, 66B, 66C, 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Elturk v The Queen [2014] NSWCCA 61
- KT v R [2008] NSWCCA 51
- McLaren v The Queen [2012] NSWCCA 284
- R v KNL [2005] NSWCCA 260
- Rakielbakour v DPP [2020] NSWSC 323